PRIYANKA DAHIYA Vs. MANISH RAJ

JUDGEMENT

(1.) Prayer in this petition is for setting aside the order dtd. 8/1/2019 passed by the District Judge, Additional Family Court, Karnal vide which an application filed by the petitioner-wife under Order 7 Rule 11 C.P.C. to dismiss the petition filed by the respondent-husband under Sec. 25 of the Guardianship and Wards Act, 1890 read with Sec. 6 of the Hindu Minority and Guardian Act, 1956 for claiming the custody of 'A' (name not disclosed) was declined.

(2.) Brief facts of the case are that the marriage of the petitioner with the respondent was solemnized on 31/10/2010 and out of this wedlock, a male child 'A' was borne on 1/7/2015. Since the marriage between the parties could not pull on, both of them decided to file a petition under Sec. 28 of the Special Marriage Act, 1954 for granting a decree of divorce by mutual consent. The said petition was filed before the Family Court at Sonepat on 17/10/2017, i.e. just three months after the birth of the male child. In para 5 of this petition, both the parties made a joint declaration that they are living separately from each other since September, 2015 and they are unable to live together as husband and wife any more. Para 7 of this petition reads as under :-

(3.) Thereafter, at the stage of first motion, on the same day, i.e. 17/10/2017, a joint statement of the parties was recorded, in which the following averments were made with regard to the custody of the minor child :-